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TMI Blog2008 (11) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances is that the 3000 kgs of potassium chlorate had been cleared by RCPL without payment of duty for delivery – Demand of Duty, Penalty and Confiscation upheld – however personal penalty reduced. - E/246-248/2006 - 1367-1369/2008 - Dated:- 27-11-2008 - Shri P. Karthikeyan, Member (T) Shri M. Kannan, Advocate, for the Appellant. Shri M.K.A.K. Mohiddin, JDR, for the Respondent. [Order]. - The captioned appeals have been filed by M/s. Royal Chlorates (P) Ltd. (RCPL), a manufacturer of Potassium Chlorate, Shri A. Xavier Jayapaul, Managing Director of RCPL and Shri K. Vairakani, a driver employed by RCPL. In the impugned order, the Commissioner (A) sustained the order of the original authority. The facts of the case are tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security. A Show Cause Notice was issued in July, 2005 proposing to confiscate the seized potassium chlorate, the vehicle used to transport the same, to demand duty on the seized potassium chlorate under Section 11A of the Central Excise Act, 1944 (the Act), to impose penalty on RCPL under Section 11AC of the Act read with Rule 25 of Central Excise Rules, 2002 (CER) and to impose penalties on S/Shri A. Xavier Jayapaul, K. Vairakani. On conclusion of the proceedings, the original authority demanded duty on the seized potassium chlorate not covered by invoice No.190, dated 5-2-05, imposed penalty of Rs. 2946/- on RCPL under Section 11AC of the Act, Rs. 2000/- on Shri A Xavier Jayapaul, M.D, RCPL under Rule 26 of CER and Rs.1500/- on Shri K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of penalty of Rs. 2946/- under Section 11AC was not warranted. 3. In the appeal filed by Shri A. Xavier Jayapaul, MD of RCPL, the penalty of Rs. 2000/- imposed on him under Rule 26 of CER is challenged on the basis that the impugned clearance was not clandestine clearance and that a penalty was not imposable on the Managing Director as he had not done anything intentionally and in view of the fact that the assessee was penalized. 4. Shri K. Vairakani has challenged the penalty of Rs.1500/- imposed on him as harsh and submitted that he was innocent. Rule 26 of CER did not apply to him in view of his role in the transactions. 5. The ld. Counsel for the appellants submits that the department had not established clandestine cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 321, wherein, in a similar case, it was held that "the fact that at the time of interception of goods, they were not accompanied by valid documents in terms of Rule 52A of erstwhile Central Excise Rules, 1944 (pan materia to Rule 11 of Central Excise Rules, 2002) and subsequent preparation and production of original documents did not absolve liability for contravention of Rule 52A ibid" and also correctly upheld the confiscation, imposition of redemption fine and penalty. There is no dispute that the removal of 3000 kgs of potassium chlorate without appropriate invoice was in contravention of the provisions of Rule 11 of CER. He also rightly relied on the decision of the Tribunal in the case of Madhukar S.S.K. Ltd. v. CCE, Nasik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te is not acceptable. The d-river is expected to know and is bound to carry the appropriate duty paying documents when he sets out on a trip carrying a consignment of goods exigible to duty of excise. Moreover, the driver and the supervisor of RCPL who escorted the consignment had not mentioned in their statements recorded immediately after the seizure of the goods that any part of the goods had been meant to be delivered at the assessee's depot at Kovilpatti as claimed later. They had only deposed that the entire consignment was meant for M/s. S.R. Agencies, Kovilpatti as the 1000 kgs covered by invoice No.190. The only reasonable inference possible in the circumstances is that the 3000 kgs of potassium chlorate had been cleared by RCPL wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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